AAT: Importance, Independence and Appointments
Narelle Bedford
10.04.19
Introduction
The Commonwealth Administrative Appeals Tribunal (AAT) commenced operations in 1976. Over time its jurisdiction has been expanded and it now reviews a vast array of federal government decisions made under more than 400 Acts. The AAT stands as one of the key mechanisms for government accountability, a role which may, but need not, place it in conflict with the government. Recently, AAT decisions concerning visa cancellations for those with criminal records have received negative media attention. Also attracting damaging public attention has been the appointment of people to the AAT who hold associations to the political party in power. Despite its operation for 43 years and the important accountability role of the AAT, the need for independence in appointments continues to be a contentious issue. It is timely once again, especially in the lead-up to a federal election, to advocate in support of the AAT and specifically for reform in the appointment process to secure the tribunal’s independence.
The AAT facilitates access to justice by conducting merits review of government decisions thereby permitting ordinary people to have their voice heard when their matter is reviewed by an independent, expert body. The availability of independent review increases public confidence in government decision-making because it shows the government’s commitment to transparency. These positive benefits are at risk if the public perceives the appointment process as undermining the independence of the AAT. It is contended there is an appetite among the general public for improving standards in public office, as seen by the rising support for the creation of a Commonwealth anti-corruption body.
Importance of the AAT
To understand the multiple, intertwined purposes of the AAT, it is essential to consider its original foundations. An independent expert body, the Kerr Committee, appointed to consider reforms to the Commonwealth administrative law system, concluded in its 1971 report (formally the Commonwealth Parliamentary paper No 144 of 1972) that aggrieved citizens were seeking review of government decisions on the merits, and proposed that the AAT be created to fulfil this function.
In addition to its review role, which provides individualised justice for those in dispute with government, the AAT was designed to have a central role in the improvement of government decision‑making. The scope of operation envisaged for the AAT was therefore simultaneously individual and also system-wide. The importance of the AAT system-wide role was explained by Deputy President McCabe in the 2019 case of Williams, where he described the AAT as:
also a cultural institution designed to promote a bureaucracy-wide commitment to better decision-making for the benefit of all Australians. The Tribunal does that by modelling good decision-making behaviour in particular cases. Its decision-making creates norms and educates primary decision-makers and other stakeholders dealing with similar issues in the future.
The AAT received 58,780 applications and finalised 40,040 applications for review in the 2017-18 reporting period. Its workload continues to grow, indicating that awareness of the AAT is having an impact in Australian society. For example, the most recent annual report states that ‘the number of applications lodged in 2017–18 was 14 per cent higher than the number lodged in 2016–17, which was 24 per cent higher than the number of lodgements in the previous year’. These statistics vindicate the imperative identified in the original expert report that individuals want the opportunity to have government decisions reviewed on their merits. The statistics also confirm that this need has endured and strengthened over time.
Independence of the AAT
In theoretical terms, independence of public bodies such as the AAT can be understood as encompassing different contexts, such as institutional independence and adjudicative independence. Institutional independence refers to the structural and institutional relationship to the government. It encompasses issues such as appointments and re-appointments and the methods followed in this process. Adjudicative independence refers to the ability to decide matters free from external or improper influence from any source, including the government. Both types of independence are essential for the AAT to operate at its full potential.
The AAT is an integral component of the Australian administrative justice system. It is one of the mechanisms fulfilling an accountability role over government decision-making. Other institutions include the Ombudsman and the court system. It is this accountability role that may, but need not, place the AAT in a tense position with the government. Thus, the inherent challenges presented to the independence of the AAT was explained by Logan J (when Acting as President of the AAT) in Singh as follows:
The very existence of the Tribunal and the independent, quasi-judicial model adopted for it means that, inevitably, there will be tension from time to time between Ministers and others whose decisions are under review and it… These are inherent features of any checks on the exercise of arbitrary power.
He continued to explain why this tension between the AAT and the government of the day need not be problematic and how it could best be countered:
They can be lessened if each element of our system of government understands and respects the role of the other.
In JWTT and Commissioner of Taxation, Deputy President McCabe explained that this tension need not be a destructive force and, indeed, it should be anticipated that there may be different outcomes reached by the Tribunal as compared to the original decision-maker as:
The Tribunal is also an independent generalist decision-maker informed by its expertise in good government. That means the Tribunal’s findings of fact and analysis of the law might be quite different from the original decision-maker. Indeed, the possibility of that occurring underlines the point of merits review.
Original position on appointments to the AAT
When first designed, membership of the AAT was envisaged to comprise panels of judges, public servants and lay people appointed for their ‘character and experience in practical affairs’. The Kerr Committee Report, which devised the AAT, did not make any recommendations on the process or criteria for appointments or the term of such appointments.
The initial intention of Parliament regarding terms of appointments to the AAT is clear from the original Act. At establishment, all Presidential members held office until attaining the age of 70. Presidential members were defined as encompassing the President and all Deputy Presidents. This provision has since been amended in 2005, so that now only the President enjoys ‘tenure’ until age 70 as a judge (although not as AAT President), as the President is simultaneously appointed as a judge of the Federal Court. Of course, any other Federal Court judges simultaneously appointed to the AAT as Deputy Presidents will also have tenure as a judge (though not on the AAT) until they reach judicial retirement age. All other appointments are for the term specified in the instrument of appointment.
Current statutory framework for appointments
Presently, all appointments to the AAT are formally made by the Governor-General pursuant to section 6(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), although in reality appointments are the responsibility of the Attorney‑General. The AAT Act structures this power somewhat in section 7, which contains qualifications for appointment. It is notable that the original intention regarding the range of people appointed to the AAT has been implemented, with legislative provisions covering judicial, legal and other relevant skills and knowledge. Broadly the qualifications required (apart from judicial appointments) are:
Enrolled as a legal practitioner for at least 5 years; or
Special knowledge or skills relevant to the appointed duties.
The process of appointments was streamlined with the amalgamation into the AAT of the former migration, refugee and social security tribunals in 2015. Appointments to those specialist tribunals had previously been the responsibility of the relevant Minister (Immigration or Social Security). Upon amalgamation, those Ministers were to be consulted by the Attorney-General. Now members are specifically appointed to particular divisions of the AAT by the Attorney-General.
Administrative law academics Roger Douglas and Michael Head have asserted that ‘it is difficult to know how far governments refuse to renew members’ terms on the grounds of dissatisfaction with their decisions’. In 2014, they claimed there was ‘some evidence to suggest’ most members are reappointed based on statistics from annual reports. Since those comments were published, there have been further appointments and reappointments made which contained a significant proportion of new members together with the non-reappointment of experienced members. Most recently, there have been concerns published in mainstream media regarding affiliations between new appointments and the governing political party. This is not a new trend and there have been instances in the past involving previous governments and appointee affiliations.
It is not appropriate that the AAT should have to enter the public debate and defend itself in the face of such open, and at times robust, criticisms. This task should appropriately belong to the Attorney‑General as the first law officer. However, the political reality of the modern Attorney‑General (as a member of the governing political party) often means these important responsibilities remain unfulfilled. This conundrum requires a nuanced and delicate response so that there are public voices who can advocate for the AAT (possibilities would include academics, practitioners and other holders of public office).
Adding further to public perceptions of AAT appointments having been partially co-opted for party political motivations was the instance of an AAT appointee becoming embroiled in the sequence of cases concerning the requirements of section 44 of the Constitution. In particular, in 2017 the High Court determined that Hollie Hughes was ineligible to be a Liberal Senator replacing Fiona Nash (who the High Court had previously ruled ineligible due to dual citizenship). This was due to Ms Hughes having accepted an appointment to the AAT on 1 July 2017 for a seven-year term (after she failed to become elected to the Senate as a Liberal Party candidate) because this constituted an office of profit under the Crown as prohibited under section 44 of the Constitution. Ms Hughes resigned from the AAT on 27 October 2017, 45 minutes after the High Court decision against Ms Nash, so therefore only held that appointment for a matter of months. This was nonetheless sufficient to amount to an office of profit.
Beyond the affiliations of new appointees, there have also been variations in the terms of appointment. This means that the durations of appointment have differed without any explanation or justification being provided as part of the official record. Section 8 of the AAT Act provides that the term of appointment of all members is for a period of seven years at most. The length of appointment is currently entirely at the discretion of the Attorney-General. In the February 2019 AAT appointments for example, members were appointed for terms varying between three, five and seven years. The issue of the length of appointment can have implications for adjudicative independence, as Tribunal appointees holding shorter terms may be perceived by the public as incentivised to placate the government through upholding its decisions on review and thus earn reappointment.
Reform proposals on appointments and independence
In 1995, an expert body (the now sadly defunct Administrative Review Council) conducted a review of Australia’s federal merits review system. It resulted in a comprehensive report titled ‘Better Decisions’ which contained numerous recommendations on selection of tribunal members and terms of appointments. These were broad ranging and covered issues such as publicly available selection criteria against which all prospective appointees should be assessed. The report proposed that assessment should be undertaken by a broad-based panel established by the Minister and that any appointments only be made from those assessed by the panel as suitable. The preferred term of appointment suggested was between three and five years. The recommendations were not implemented in the AAT by the government at the time nor subsequently.
Following this report, in 2013 the Australian Institute of Judicial Administration commissioned an independent academic expert, Associate Professor Pamela O’Connor, to research and publish a monograph on ‘Tribunal Independence’ which contained multiple recommendations for enhancing tribunals’ independence and appointment processes. She concluded that there was:
wide agreement that the appointment processes should be open, fair, transparent and merit-based, to promote equity and diversity and to reduce opportunities for political patronage and bias.
The report considered all Australian tribunals and noted there had been a ‘marked shift’ from a nomination model controlled by the Minister to an assessment panel model (but this did not occur in the AAT). Even in those tribunals that did reform recruitment to an assessment panel model, the final stages were subject to Ministerial discretion so that the report concluded the process was ‘opaque’. Ultimately the report recorded that ‘more could be done to make Ministers accountable for their selection decisions’. In respect of terms of appointment, the report stated that fixed term appointments are ‘the norm…and likely to remain so’ but no particular ideal length of time was proposed. Specifically, for reappointment processes, these were found to be ‘often ad hoc, inconsistent and opaque’ with tribunal members made to ‘wait too long for notification…and left in doubt’. This can have implications for the future ability of tribunals to attract and recruit suitably skilled candidates and retain their skills, experience and knowledge. The recommendations again were not implemented in the AAT by the government at the time nor subsequently.
Finally, in 2016 the Council of Australasian Tribunals published a Best Practice Guide titled ‘Tribunal Independence in Appointments’. The Guide was issued to ‘inform, educate and raise awareness’ about appointment and reappointment processes in tribunals. The recommendations contained in the Guide reinforced earlier expert advice confirming the importance of merit-based appointments, open recruitment and the need for diversity in appointees. Significantly, the Guide also contained two options for better legislative design to ensure tribunal independence. Once again, the best practice exemplars in the Guide were not implemented in the AAT by the government at the time nor subsequently.
Conclusion
The AAT stands as an example of Australian innovation in the broad public accountability system. It is an important body with a specific function whose independence must be secured. The AAT is itself subject to the checks and balances of the court system. Assiduous care should be taken to reflect carefully on the very low rate of AAT decisions being overturned by the federal courts and High Court when taken on appeal. These statistics are available on the public record in the AAT’s annual reports. This important fact confirms that the AAT is undertaking its role in accordance with law and that the public, and the government itself, should have confidence in the AAT.
The critical role performed by the AAT in Australia in resolving disputes means there is a pressing need for independence in the appointment of personnel to the AAT. Without the public profile of courts, tribunals such as the AAT need champions to proclaim their value. The AAT is accessible and informal, but its public credibility may be at risk of criticism due to the repeated occurrences of partisan appointments. There has been a history of partisan appointments to the AAT by both major political parties. Proposals for reform of the appointment process have been recommended by various expert bodies time and again, but these sound proposals have not been implemented by successive governments. In the context of a looming federal election, it is therefore timely for all political parties to reconsider the reform proposals and commit to their implementation in the next Parliament.
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Narelle Bedford is an Assistant Professor teaching Administrative Law (and Canadian Administrative Law) at Bond University in Queensland.
Suggested Citation: Narelle Bedford, ‘AAT: Importance, Independence and Appointments’ on AUSPUBLAW (10 April 2019) <https://auspublaw.org/blog/2019/04/aat-importance,-independence-and-appointments/>.